Bombay High Court
The State Of Maharashtra vs Gangaram Dnyanoba Gavli And Ors on 12 December, 2017
Bench: T.V. Nalawade
1 APEAL60.2002 & ors
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 60 OF 2002
Vinod Dadarao Waghmare,
Age : 21 yrs., Occu. Student,
R/o. Ghodka (Rajuri),
Tq. and Dist. Beed. ... Appellant
Orig. Accused No. 4
VERSUS
The State of Maharashtra ... Respondent
..........
Mr S. P. Katneshwarkar, Advocate for the appellant
Mr S. D. Ghayal, APP for respondent/State
.............
WITH
CRIMINAL APPEAL NO. 240 OF 2002
The State of Maharashtra
through Police Station Officer,
Police Station Beed City. ... Appellant
Orig. Complainant
VERSUS
1. Gangaram S/o Dnyanoba Gavli,
Age : 36 years, Occu. Furniture maker,
R/o. Pune.
2. Yadykhan S/o Jummankhan Pathan,
Age : 22 years, Occu. Labour,
R/o. Pune.
3. Shaikh Shahabuddin S/o Shaikh Hussain,
Age : 40 years, Occu. Guarage, R/o. Pune.
4. Vinod S/o Dadarao Waghmare,
Age : 21 years, Occu. Education,
R/o. Pune. ....Respondents
(Orig. Accused)
::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:44:41 :::
2 APEAL60.2002 & ors
..........
Mr S. D. Ghayal, APP for appellant/State
Mr S. S. Thombre & Mr. A. R. Gaikwad, Advocate for respondent no.1
Mr S. P. Katneshwarkar, Advocate for respondent no. 4
Mrs A. N. Ansari, Advocate for respondents No. 2 and 3
.............
WITH
CRIMINAL APPEAL NO. 255 OF 2002
The State of Maharashtra
through Police Station Officer,
Police Station Beed City. ... Appellant
(Orig. Complainant)
VERSUS
1. Gangaram S/o Dnyanoba Gavli,
Age : 36 years, Occu. Furniture maker,
R/o. Pune.
2. Yadykhan S/o Jummankhan Pathan,
Age : 22 years, Occu. Labour,
R/o. Pune. (Dismissed as per order dt. 14/2/11
passed in CA 825/02).
3. Vinod S/o Dadarao Waghmare,
Age : 21 years, Occu. Education,
R/o. Pune. ....Respondents
(Orig. Accused 1, 2 & 4)
..........
Mr S. D. Ghayal, APP for appellant/State
Mr S. S. Thombre & Mr. A. R. Gaikwad, Advocate for respondent no.1
Mr S. P. Katneshwarkar, Advocate for respondent no. 3
.............
CORAM : T. V. NALAWADE &
A. M. DHAVALE, JJ.
RESERVED ON : 17.11.2017.
PROUNOUNCED ON : 12.12.2017.
JUDGMENT (PER A. M. DHAVALE, J.):
1. These appeals arise out of a common judgment delivered
by Addl. Sessions Judge, Beed on 18.01.2002 in Sessions Case
3 APEAL60.2002 & ors
No.32/2000, whereby accused no. 1 - Gangaram, accused no. 2 -
Yadukhan and accused no. 4 - Vinod were convicted u/s 363 r/w 34
of IPC and were sentenced to undergo RI for two years and to pay
fine of Rs. 2,000/-, in default, to undergo further RI for six months.
Accused no. 3 - Sk. Shahabuddin was acquitted. The aggrieved
accused no. 4 - Vinod has preferred Cri. Appeal No. 60/2002
challenging his conviction, while the State has preferred Cri. Appeal
No. 240/2002 seeking leave u/s 378(1)(3) for filing appeal against
acquittal and for conviction of all the accused u/s 364A r/w 34 IPC
including that of acquitted accused no. 3 - Sk. Shahabuddin. Cri.
Appeal No. 255/2002 is filed by State for enhancement of the
sentence of all the accused.
2. The facts relevant for deciding these appeals may be stated
as follows :
PW9 Abhijeet, aged eight years, a student studying in 3rd
std. is son of PW4 Somnath and in January-2000, he was studying in
Sanskar Vidyalaya at Beed. Arrangement of common auto-rickshaw
was made for to and fro journey from his house to school and PW5
Virbhadra was the auto rickshaw driver. The school timing was from
7.00 a.m. to 12.30 noon. PW4 Somnath and his brother are in
business of manufacturing oil. They had a Oil Mill at MIDC, Beed.
4 APEAL60.2002 & ors
On 10.01.2000, PW5 Virbhadra dropped PW9 Abhijeet near his
school at 7:00 a.m. When PW5 Virbhadra went to the school at 12:30
noon, PW9 Abhijeet was not there. He was searched but he was not
traceable. The information was given to his parents and they also
started search. As he could not be searched, a missing report was
lodged in the same afternoon. PW4 Somnath, his brother and cousins
PW7-Navnath, PW8-Arun and PW1-Suresh continued the search and
contacted the relations but Abhijeet could not be traced. On next day
i.e. on 11.01.2000, at about 09:00 to 09:30 a.m., an anonymous
phone call was received by Sangita (PW9 Abhijeet's mother). The
caller made inquiry about Soma (PW4) and when Sangita told him
that her husband was not at home, he told her that he would again
make a call after one hour and Soma should attend it. After one hour,
the caller informed PW4 Somnath in hindi that he was calling from
Mumbai and his son Abhijeet was in his custody and if he (PW4)
wanted his child back, he should pay Rs. 5.00 lakhs. PW4 Somnath
told him that he would be required to consult his brothers. The caller
informed him that this fact should not be communicated to his
brother Baban and to the police, lest he would kill his son. He told
him that he would again call him in the evening. PW4 Somnath
shared the information with his brother. Again there was a call at
5:00 to 5:30 p.m. The caller disclosed his name as Gawali and told
5 APEAL60.2002 & ors
him that his son was in his custody and he should come to receive
him at Shivajinagar Bus Stand, Pune. Within five minutes thereafter,
PW4 received phone call from a Jamadar ASI - Kale from Nigadi
Police Station, Pune and informed him that Abhijeet was in their
custody and the communication was arranged with Abhijeet. PW4
then reported the matter to Beed Police and he along with police at
Beed reached Pune. PW9 Abhijeet was in the Police Station of Nigadi
Corporation. One more person was there. On enquiry, Abhijeet
informed him that when he was proceeding to his classroom, one
person came to him and told him that his father had called him and
he was to be taken for darshan of god and goddess. Then PW9 along
with his school bag came out of the school. He was taken to a car
wherein two persons were already there. Those two persons had
brought him by the car to Pune and he slept in the room of one
Bhaiyya. The car was driven by one person by name Gawali (accused
no.1 - Gangaram). After sometime the person who had called him
from the school to the car left the spot and the remaining three
persons took him to Indira Gandhi Garden. After sometime, two of
them went to a car and one Bhaiyya was with him. He somehow
managed to run away from him and gave information to the
watchman of the garden wearing uniform like a police that he was
kidnapped and they were likely to kill him. The watchman reached
6 APEAL60.2002 & ors
him and the said Bhaiyya to the nearest Police Station, Nigadi. The
person with Abhijeet was accused no. 2 - Yadukhan. He informed
that, he along with accused no. 1 - Gangaram Gawali and accused
no. 3 - Sk. Shahabuddin conspired to kidnap Abhijeet so as to extort
money from his father and he was brought to Pune in a car bearing
No. MTJ 5293 belonging to accused no. 1. It was agreed that a
demand of Rs.5.00 lakhs should be made for releasing the boy.
Accordingly, Gawali had made a demand of Rs. 5.00 lakhs. Accused
no. 2 - Yadukhan also gave information that accused no. 4-Vinod was
along with them from morning till the time of their arrest. Accused
nos. 1, 2 and 4 were brought from Pune to Beed and on 13.01.2000,
PW1 Suresh, uncle of PW9 lodged FIR at Beed City Police Station at
8:40 am. On the basis of the same, the crime was registered at C.R.
No. 12/2000 u/s 363, 364, 384, 120B of IPC and the same was
investigated into by PW15 Dy.S.P.-Pathak. During the investigation,
personal search of accused no. 1 was taken and some petrol receipts,
toll receipts and garden parking receipts were seized from accused
no.1. The rest of the investigation was carried out by recording
statements of material witnesses and drawing seizure panchanama.
The car was seized from the custody of accused no. 1, which was
containing a school bag with notebooks and lunch box of PW9. After
completion of investigation, charge-sheet was submitted in the court.
7 APEAL60.2002 & ors
3. In due course, the case was committed to the court of
Sessions. The ld. Addl. Sessions Judge framed charge at Exh. 40 u/s
364A/34 against accused nos. 1 to 3 and u/s 120B IPC against
accused nos. 1 to 4. The accused pleaded not guilty. The prosecution
examined 15 witnesses. The defence of the accused is of total denial.
The ld. Addl. Sessions Judge held accused nos. 1, 2 and 4 guilty u/s
363 r/w. 34 of IPC and convicted and sentenced them as referred to
above. Hence these appeals.
4. Ld. APP Shri. Ghayal has taken us through the evidence on
record and has argued that there is a cogent, consistent and reliable
evidence to disclose that accused nos. 1 to 4 conspired together and
accused nos. 1 to 3 kidnapped PW9 Abhijeet from the lawful custody
of his parents and took him to Pune. The said kidnapping was for
ransom and a demand of Rs.5.00 lakhs was accordingly made by
phone calls. There was ample evidence showing the commission of
offence u/s 364A r/w 120B IPC. The ld. trial Judge erred in
neglecting the unchallenged evidence on the point of demand of
ransom amount by phone calls and unnecessarily reduced the
sentence to Section 363 IPC. Besides, accused no. 3 has been wrongly
acquitted as he was one of the main accused who had kidnapped the
child. The punishment awarded is also not proportionate to the
8 APEAL60.2002 & ors
nature and severity of the crime. Therefore, accused nos. 1 to 4 be
held guilty for offences u/s 364A r/w 120B IPC and the maximum
sentence should be awarded to them.
5. Per contra, learned Advocate Mrs. Ansari argued that
accused no. 3 - Sk. Shahabuddin has already undergone the period of
sentence as under-trial prisoner. There is no proper evidence on
identification of accused no. 3 - Sk. Shahabuddin to connect him
with the crime. PW9 Abhijeet has admitted that, he has disclosed his
name only at the instance of police and after tutoring. Similarly,
PW14 Swapnil, friend of Abhijeet has also given admission which
washed out his entire evidence with regard to identification of
accused no.3. She also argued that, there was no other evidence to
connect accused no. 3 with the crime and, therefore, the acquittal of
accused no. 3 cannot be interfered with.
6. Learned Advocate Shri. S. P. Katneshwarkar for respondent
no. 4 argued that, accused no. 4 Vinod had not been to Beed for the
purpose of kidnapping. Though PW9 Abhijeet stated that he was
with him when he met the watchman of the Garden, PW10-
Dnyandeo Bule the watchman who took him to the Police Constable
and PW13 of Nigadi Police Station have falsified him. According to
9 APEAL60.2002 & ors
him, it was accused no. 2 - Yadukhan who was with boy. No role has
been assigned to accused no. 4-Vinod and, therefore, his conviction is
based on no material. Therefore, the appeal of accused no. 4 be
allowed and he be acquitted.
7. Learned advocate Shri. Gaikwad for accused no. 1 - Gawali
stated that, the evidence regarding involvement of accused no. 1 and
his identification is not at all satisfactory. Considering the
discrepancies in the evidence, accused no. 1 should have been
acquitted.
8. Mrs. Ansari, ld. Advocate was appointed for accused no. 2-
Yadukhan and she argued that, no T.I. parade was held. Accused
no.2 - Yadukhan had no role to play. The evidence regarding his
involvement is contradictory. Hence, he should be acquitted.
9. Learned APP has relied on judgment of Division Bench at
the Principal Seat of this High Court in Criminal Appeal No. 477 of
2008, Naseem Ahmed Habib Ahmed V/s. State of Maharashtra,
decided on 17.06.2013 (Smt. V. K. Tahilramani & P. D. Kode, JJ.)
wherein the conviction of accused no. 1 u/s 120-B, 364-A r/w 34 of
IPC was upheld.
10 APEAL60.2002 & ors
10. On the basis of arguments advanced and evidence on
record, the points for our consideration with our findings thereon are
as follows :
Sr. No. Points Findings
1 Whether accused nos. 1 to 4
conspired to commit the
offence of kidnapping of PW9 Proved against A1 & A2.
Abhijeet for ransom?
2 Whether in pursuance of the
conspiracy accused nos. 1 to 4
kidnapped PW9 Abhijeet from
the lawful custody of his
parents and taken him from Proved against A1 & A2.
Beed to Pune and kept him in a
wrongful confinement from
10.01.2000 7.00 a.m. to
11.01.2000 4.00 p.m.?
3 Whether any interference is
required in the order of
conviction or the order of In the affirmative.
sentence?
4 What order? Accused nos. 3 and 4 are
acquitted. Accused nos. 1
and 2 are convicted u/s
364A r/w 120B IPC.
REASONS
11. The prosecution has examined 15 witnesses, which may be
conveniently grouped as follows :
11 APEAL60.2002 & ors
[I] Missing of PW9 Abhijeet :
(i) PW1 Suresh has lodged the FIR Exh. 54 on
13.01.2000 at 8:40 am.
(ii) PW4 Somnath, father of the child.
(iii) PW5 Virbhadra was auto-rickshaw driver. He was
taking the child from house to school. He has
deposed that, as usual on 10.01.2000 at 07:15 a.m.
he dropped Abhijeet near the school and when he
went there at 12:30 noon, the scheduled time of
closing the school, he found PW9 Abhijeet missing.
He searched for Abhijeet but he was not there. He
reported the matter to parents of the Abhijeet.
(iv) PW6 Prabhavati deposed that on 10.01.2000, she
had taken roll call of 3rd std. division 'D' at 07:40 a.m.
and that time Abhijeet was absent from the school.
(v) PW7 Navnath is cousin of PW9's father PW4
Somnath. He has also deposed about missing of
Abhijeet and search conducted by them.
(vi) PW8-Arun and PW7-Navnath had also deposed that
after receipt of message from police at Nigadi Police
Station, they had gone to Pune and went to Nigadi
Police Station and from there they took custody of
Abhijeet who was brought by them to Beed. The
evidence in this regard has remained unchallenged.
12 APEAL60.2002 & ors
(vii) The record shows that, the factum of kidnapping of
PW9 on 10.01.2000 at 7:00 a.m. while he was near
the school and taking him by car to Pune and
thereafter he being found along with somebody in
Appughar Garden and brought to Nigadi Police
Station and thereafter to Beed, is not in dispute.
There is also evidence that, PW4 Somnath had
received a telephonic demand of Rs. 5.00 lakhs for
release of Abhijeet who was claimed to be in the
custody of the caller. The evidence in this regard is
also undisputed. The accused are only disputing their
involvement in the crime.
(viii) PW9 Abhijeet is the star witness. He deposed that,
on the fateful day, by his usual rickshaw he came to
the school at 06:45 a.m. Then one person came to
him and told him that his parents had called him as
they wanted to take him to the temples of god and
goddess. PW9 Abhijeet was aged eight years. He
could not understand the trap laid by said person and
he came and got into the car. His evidence shows
that, accused no. 3 - Sk. Shahabuddin was the person
who was calling him in the car. He stated that,
accused no. 1 Gawali and accused no. 2 Yadukhan
were present in the car and they took him from Beed
to Pune. They showed him one cinema in a Cinema
Hall. Thereafter, they slept in one room. He was not
knowing their names. On the next day, one of them
by name Gawali asked another person to go to Beed
13 APEAL60.2002 & ors
and he went to Beed. Thereafter, he and other
accused including Gawali and one another person
came to a garden. Accused no. 1-Gawali went away
for sometime, he made a request to remaining two
persons to allow him to sit near a policeman (they
were in the garden at Nigadi known as Appughar and
he was taking the watchman of the garden as
policeman). However, he was not allowed but he
somehow escaped from them and contacted said
watchman assuming him to be a policeman. He told
him that, he was beaten. That time accused no.1
Gawali came there and the watchman brought him
and the accused to the police station. He was
provided Bhaji Poli (Vegetable + Chapati). He
identified accused no. 3 - Shahabuddin as the same
person who had taken him away from the school. He
identified accused no.1-Gangaram and accused no.2-
Yadukhan as the persons who had taken him from
Beed to Pune. He identified accused no. 4-Vinod as
the person who was with him in the garden. He
stated that his school bag containing notebooks and
lunch box was in the car. He identified the said
school bag and lunch box (article no. 3).
(ix) PW10 - Dnyandeo Bule has supported PW9. He
stated that, he was serving as a Watchman in Indira
Gandhi Garden at Pune. On 11.01.2000 at 3:00 p.m.
he joined his duty in second shift. He saw one boy
aged 7-8 years (PW9) accompanied with one person
aged 20-22 years in the garden. The boy was
14 APEAL60.2002 & ors
weeping. The watchman asked that person why he
had beaten that boy. That time the boy rushed to him
and told him that he was kidnapped by the person.
He made further inquiry and noticed that the boy
was frightened and weeping. The person along with
him told that the boy was of his Seth and his Seth
had gone to Nigadi. The watchman told that person
to sit away from the boy so that boy can sit near him
(PW10). The person stated that the boy would run
away. PW10 then made detailed inquiry with the
boy. He disclosed to him that he was kidnapped and
his school bag was in the Fiat Car and the boy
requested him to reach him to his house. The boy
disclosed to him that he was resident of Beed. He
was wearing the uniform of the school. PW10 found
substance in the story regarding kidnapping and he
requested his co-worker Mr. Mode to contact police.
That time, two more persons came by a car. One of
them asked that boy to proceed with him. PW10
Dnyandeo made inquiry with him as to who was the
boy and he told that he was his relative and that boy
was mentally retarded and he should not pay any
heed to his say. PW10 told him that he should bring
the father of the boy and then only he should take
away the boy. Then those two persons left the garden
and went in their car. He restrained them from
proceeding in the car and kept one of them with him.
Then the other co-workers gathered and the boy and
the person were sent to the police. The other two
persons who left in the car did not return. PW10 has
15 APEAL60.2002 & ors
identified PW9 as the said boy, accused no. 2-
Yadukhan as the person accompanying him and
accused no. 1-Gangaram and accused no. 4 Vinod as
the persons who had been to the garden in the car.
In cross, it is brought on record that he did not lodge
any report at the Police Station nor submitted a
written report to his superior. His statement was
later on recorded by police from Pune. He stated
that, he had gone to the Police Station Nigadi at 4:30
to 5:00 p.m. He stated that, accused no. 1 was in the
garden for about five minutes and thereafter he saw
him for the first time in the court. He stated that he
had stated before the police that he had told one of
the persons to stay in the garden. He denied that he
had seen the persons in the car for few moments.
(x) PW13 Sharad Kale was a Police Constable to whom
PW10 had taken PW9. He stated that, at about 3:00
p.m., PW10 watchman from Appughar brought a
child (PW9) stating that he was kidnapped from
Beed. PW3 gave the information to the
Superintendent of Police, Beed. He also stated that,
PW10 had produced before him, accused no. 2
Yadukhan. He has not been cross-examined by any
of the accused.
(xi) PW14 Swapnil is a witness to the incident which took
place in front of the school. He had identified
accused no. 3 - Sk. Shahabuddin as the person who
had taken away PW9 Abhijeet.
16 APEAL60.2002 & ors
14. As far as role of accused no. 3 - Sk. Shahabuddin is
concerned, the evidence is not convincing. PW9-Abhijeet admitted
that he identified accused no. 3 - Sk. Shahabuddin as he was shown
to him by police. He stated that, he came to know about that person
from police. He identified accused no. 3 - Sk. Shahabuddin on the
say of police. In evidence, he has stated that accused no. 1-Gangaram
and accused no. 2-Yadukhan were the persons who were with him in
the car. He has not specifically stated that accused no. 3 -
Shahabuddin had accompanied them from the School to Pune in the
car. He had stated that Gawali asked one of those persons to go to
Beed but he had not specifically stated that the said person was
accused no. 3 - Sk. Shahabuddin. PW14 Swapnil had identified
accused no. 3 as the person who kidnapped Abhijeet but in the cross-
examination he gave admissions as follows :
"It was the school time when we were playing. I was
busy in playing and therefore today I cannot identify
that man who had called Abhijeet. Police had brought
one man and shown him to me and therefore I say
that the said man had called Abhijeet. I say that
accused no. 3 - Sk. Shahabuddin is that man as police
told me and showed him to me."
17 APEAL60.2002 & ors
15. We find that, the evidence of PW9 and PW14 is not
convincing with regard to identification of accused no. 3 - Sk.
Shahabuddin. PW10 Watchman Dnyandeo Bule and PW13 Police
Constable Sharad Kale had not seen accused no. 3 - Sk.
Shahabuddin. The evidence of PW9-Abhijeet even if read minutely
does not positively indicate that accused no. 3 - Shahabudin had
accompanied them from Beed to Pune. Accused no. 3-Shahabuddin
was not known to PW3 & PW14. PW9 has not given any description
of accused no. 3 - Shahabuddin nor T.I. parade was held by the
Investigating Officer. We therefore find that the ld. trial Judge rightly
gave benefit of doubt to accused No. 3 - Sk. Shahabuddin.
16. As far as accused no. 4 - Vinod is concerned, we find
evidence against him also not free from doubt. PW9 Abhijeet has
stated that accuse no. 4-Vinod was with him in the garden when he
contacted the watchman. However, the evidence of watchman and
evidence of PW13 Sharad Kale shows that it was accused no. 2 -
Yadukhan who was with him. PW9 was too young and deposed in
the court after a gap of around 10 months.
17. The evidence of PW10-Dnyandeo Bule, Watchman, shows
that, accused no. 4 was simply present along with accused no. 1-
18 APEAL60.2002 & ors
Gangaram in the garden. There is no evidence of PW9 that he was
along with them in the room where they stayed over night. PW9 has
also not stated that accused no. 4 was with them in the car.
18. According to PW10, accused no. 4-Vinod did not speak
anything. It was only accused no. 1-Gangaram, who spoke for few
minutes only. It is quite possible that PW10 and PW9 had very little
opportunity to minutely observe accused no. 4 - Vinod. He was
unknown to both. His description was not given and no T.I. parade
was held for his identification. PW9 has already committed mistakes
about identity of accused no. 4-Vinod. In the result, accused no. 4
deserves to get benefit of doubt.
19. However, as far as evidence against accused nos. 1 and 2 is
concerned, it is quite convincing. PW9 Abhijeet has stated that both
of them were present along with him in the car from Beed to Pune.
PW9 had ample opportunity to see them as, they were along with
him even thereafter in the room i.e. from 7:00 a.m. on 10.01.2000 till
3:00 p.m. on 11.01.2000. Accused no. 2 was along with PW9-
Abhijeet in the garden. He was identified by PW10-Dnyandeo Bule
and he was taken by PW10 to the Police Station where he was again
identified by PW13 Sharad Kale, Police Constable. The evidence of
19 APEAL60.2002 & ors
Sharad Kale has gone unchallenged.
20. Thus, we find that there is convincing evidence showing the
role of accused no.2 - Yadukhan in the crime.
21. As far as accused no. 1 is concerned, he was in the car as
well as in the room with PW9 Abhijeet right from 7:00 a.m. on
10.01.2000 till 3.00 p.m. on 11.01.2000. Thereafter, he had been to
the garden and had a talk with PW10 Dnyandeo Bule for sufficient
length of time. PW10 that time was aware that PW9 was probably
kidnapped and accused no. 1 might be a suspect. Accused no. 1 told
him that, PW9 was mentally retarded and he should not pay
attention to his say. When PW10 declined to allow him to take PW9
with him, he has left the spot.
22. Besides, the evidence of PW3 Balkrishna Sikchi shows that,
on 12.01.2000 at Corporation Police Station, Nigadi, accused no. 1
was personally searched in his presence and several receipts of petrol
bills and one receipt of Hirapur toll tax were found with him. He did
not speak about the seizure of Indira Gandhi Udyan parking receipt.
The said receipt was also not shown to PW3 for identification.
Thereafter, the panchanama to that effect is at Exh. 58. Thereafter,
20 APEAL60.2002 & ors
by a separate panchanama the Fiat car of the accused was seized. It
was containing a school bag. The school bag was identified by PW9
as his school bag (article no. 3).
23. PW9 has also stated that, accused no. 1's name was Gawali.
PW4-Somnath has stated that, when he received phone call of
demand of Rs.5.00 lakhs, the caller has disclosed his name as Gawali.
We find that, even in absence of T.I. parade, there is sufficient
material to show involvement of accused no. 1 in the crime.
24. It was argued that, the prosecution witnesses were not
knowing the accused persons and therefore it was necessary to hold
T.I. parade. It is a normal rule if the witnesses are not knowing the
accused persons, holding of T.I. parade is necessary. However, in the
present case, accused no. 2-Yadukhan was caught red handed and
was brought to the Police Station and, therefore, in his case T.I.
parade was not necessary. As far as accused no. 1 is concerned, he
had kidnapped PW9 and PW9 Abhijeet was in his company for a long
period. He had ample opportunity and during the entire period, PW9
must be under fear. It must have created a lasting impression on the
mind of PW9, so that he could not have committed error in
identifying accused no.1. As far as PW10 is concerned, he had talked
21 APEAL60.2002 & ors
to accused no. 1 knowing-fully well that he might have committed
kidnapping of the child. In the light of these facts, we find the
evidence of PW9 and PW10 as against accused nos. 1 and 2
trustworthy and reliable even in absence of T.I. parade. Both of them
have identified accused nos. 1 and 2 in the court and the said
identification cannot be discarded merely on account of absence of TI
parade. In this regard, we rely upon Mahabir v. State of Delhi AIR
2008 SC 2343, wherein in para 12 it is held as under.
12. It is trite to say that the substantive evidence
is the evidence of identification in Court. Apart from
the clear provisions of Section 9 of the Evidence Act,
the position in law is well settled by a catena of
decisions of this Court. The facts, which establish the
identity of the accused persons, are relevant under
Section 9 of the Evidence Act. As a general rule, the
substantive evidence of a witness is the statement
made in Court. The evidence of mere identification of
the accused person at the trial for the first time is from
its very nature inherently of a weak character. The
purpose of prior test identification, therefore, is to test
and strengthen the trustworthiness of that evidence. It
is accordingly considered a safe rule of prudence to
generally look for corroboration of the sworn testimony
of witnesses in Court as to the identity of the accused
who are strangers to them, in the form of earlier
identification proceedings. This rule of prudence,
however, is subject to exceptions, when, for example,
the Court is impressed by a particular witness on whose
testimony it can safely rely, without such or other
corroboration. The identification parades belong to the
stage of investigation, and there is no provision in the
Code which obliges the investigating agency to hold or
confers a right upon the accused to claim, a test
identification parade. They do not constitute
substantive evidence and these parades are essentially
governed by Section 162 of the Code. Failure to hold a
22 APEAL60.2002 & ors
test identification parade would not make inadmissible
the evidence of identification in Court. The weight to
be attached to such identification should be a matter
for the Courts of fact. In appropriate cases it may
accept the evidence of identification even without
insisting on corroboration. (See Kanta Prashad v. Delhi
Administration (AIR 1958 SC 350), Vaikuntam
Chandrappa and others v. State of Andhra Pradesh
(AIR 1960 SC 1340), Budhsen and another v. State of
U.P. (AIR 1970 SC 1321) and Rameshwar Singh v.
State of Jammu and Kashmir (AIR 1972 SC 102).
25. In Mulla & Anr. v. State of U. P. AIR 2010 SC 942,
wherein in para 21 it is held as under :
21. Failure to hold test identification parade
does not make the evidence of identification in court
inadmissible, rather the same is very much admissible
in law. Where identification of an accused by a witness
is made for the first time in Court, it should not form
the basis of conviction. As was observed by this Court
in Matru v. State of U.P., (1971) 2 SCC 75,
identification tests do not constitute substantive
evidence. They are primarily meant for the purpose of
helping the investigating agency with an assurance
that their progress with the investigation into the
offence is proceeding on the right lines. The
identification can only be used as corroborative of the
statement in Court. (Vide Santokh Singh v. Izhar
Hussain, (1973) 2 SCC 406) : (AIR 1973 SC 2190).
27. The next question is; whether there was conspiracy or
not. It is well settled that, there can be no direct evidence about
conspiracy and it has to be inferred from the facts of the case. In the
present case, one person called PW9 Abhijeet and told that his father
had called him for going to take darshan of gods and then he was
23 APEAL60.2002 & ors
seated in the car, the car was taken from Beed to Pune. The
provision for room was already made. Thereafter, phone calls were
made to the father of the child. The caller knew the name of father
of the child. These facts clearly indicate that it was a well planned
act of kidnapping. There is convincing evidence of PW4 Somnath,
PW1 Suresh, PW7 Navnath cousin of PW4 Somnath and PW8 Arun
brother of PW4 Somnath that on next day i.e. on 11.01.2000 at 09:00
a.m. one phone call was received. It is obvious that the caller had
collected the phone number of PW4 Somnath before kidnapping his
son as the caller wanted to talk to PW4 Somnath. After one hour, he
again gave ring and disclosed to PW4 that his son was in his custody
and he should keep Rs.5.00 lakhs ready by way of ransom for
releasing of boy.
28. It is true that, the Police should have tapped the phone and
should have traced out the phone from where the calls were made
and could have reached the accused by such mode. But, merely
because the police have not carried out the investigation in proper
manner, it cannot be said that, PW9 was not kidnapped for ransom.
PW9 Abhijeet was not taken to Pune for a pleasure trip or ride. His
father was rich industrialist having ownership of oil mill. His phone
number was also collected and when PW9 was kidnapped, the phone
24 APEAL60.2002 & ors
call was made. Here we have to apply the yardstick of a reasonable
and prudent man. From these facts, any reasonable and prudent man
would come to the conclusion that the phone must have been made
by one of the accused who were in possession of PW9 Abhijeet. We
therefore hold that PW9 was kidnapped for ransom. There was clear
apprehension about causing of hurt or death of the kidnapped child if
the demand for money made by the accused was not satisfied. The
caller making phone at 10:00 am had disclosed that he was at
Mumbai when the accused was actually at Pune. There was direction
to PW4 that he should not approach the Police. If all these facts are
taken together, there is no doubt in our mind that the offence u/s
364A r/w 120B was complete.
29. For the reasons discussed herein above, the evidence
against accused nos. 3 and 4 is not beyond reasonable doubt
particularly in absence of T.I. parade but we hold accused nos. 1 and
2 guilty for offence u/s 364A r/w 120B IPC.
30. We find that the ld. trial Judge has not taken into
consideration the seriousness of the act. Had the child not escaped,
there would have been threat to his life. The act is very serious. In
the facts and circumstances, the ld. trial Judge has shown undue
25 APEAL60.2002 & ors
leniency. We have considered the submissions made by accused
nos.1 and 2 before the trial Judge with regard to sentence. In fact,
accused nos. 1 and 2 have not made any submissions but they were
under-trial prisoners for two years. Considering all the facts, we find
it appropriate to award sentence of rigorous imprisonment for seven
years to accused nos. 1 and 2 u/s 364A r/w 120B of IPC.
31. In the result, Criminal Appeal No. 240/2002 deserves to be
partly allowed and Criminal Appeal No. 60/2002 filed by accused
no.4 deserves to be allowed whereas; there is no question of
enhancement of the sentence u/s 363 of IPC as we are convicting
accused nos. 1 and 2 u/s 364A r/w 120B of IPC. Hence the order.
ORDER
(i) Criminal Appeal No. 60/2002 is allowed.
Appellant/Accused No. 4-Vinod Waghmare is acquitted.
His bail bonds stand cancelled.
(ii) Criminal Appeal No. 240/2002 is allowed as against
accused nos. 1 and 2. The conviction of accused nos. 1
and 2 is altered from Section 363 r/w 34 to Section 364A
r/w 120B of IPC and both the accused are sentenced to
26 APEAL60.2002 & ors
suffer rigorous imprisonment for seven years and to pay
fine of Rs. 1,000/- each, in default, to further undergo RI
for 50 days. The period undergone by them in Jail as
under-trial prisoners shall be set off against substantive
sentence.
(iii) Criminal Appeal No. 255 of 2002 stands dismissed.
(iv) Fees of the learned counsel Mrs A. N. Ansari, appointed
for accused no. 2 be paid through the office of High
Court Legal Services Sub-Committee, Aurangabad
as per rules.
[ A. M. DHAVALE ] [ T. V. NALAWADE ]
JUDGE JUDGE
sgp
